SUPREME COURT: CHAUTAUQUA COUNTY

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TILDEN FINANCIAL CORP.

Plaintiff,

vs Index #H-10436

CURT B. WESTROM

Defendant.

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MacKRELL, ROWLANDS

PREMO & PIERRO, P.C.

(Patrick J. MacKrell, Esq.

of Counsel) for Plaintiff

WRIGHT, WRIGHT & HAMPTON

(Edward P. Wright, Esq.

of Counsel) for Defendant

DECISION AND ORDER

DEFENDANT'S MOTION TO REARGUE

GERACE, J.

Defendant's motion to reargue the June 23, 1995

Decision and Order of this Court granting plaintiff summary

judgment is denied, without prejudice.

The only affidavit supporting the motion is that of

defendant's attorney. An attorney's affidavit is

insufficient on a summary judgment motion. See DAVID D.

SIEGEL, NEW YORK PRACTICE, Sec. 281. This Court holds that

the same applies on a motion to reargue a summary judgment

motion where the party attempts to raise a question of

fact, not law.

The motion to reargue seeks to convince the Court it

was wrong and ought to change its mind; it is not based on

new proof. Although reference was made in the affidavits

of both attorneys to defendant Westrom's affidavit on the

prior motion, neither submitted a copy.

Any new motion to reargue must be made within 30 days

of the entry of this order. Plaintiff's response may

incorporate copies of its response to the instant motion,

but, must include answers to paragraphs 6 and 8 of

defendant's July 11, 1995 Demand for Interrogatories to

elaborate on what occurred to equipment covered by the

lease repossessed by plaintiff and to amplify the

statements in paragraph 35 and 36 of Henry C. Magel's

January 27, 1995 affidavit.

On August 9, 1993, defendant Westrom executed a

REAFFIRMATION OF GUARANTY required for the restructured

lease; interrogatories directed to events, etc., before

that date would not now be appropriate.

Defendant's motion to reargue is denied, without

prejudice to resubmit within 30 days.

THIS IS THE DECISION AND ORDER OF THIS COURT. NO

FURTHER ORDER SHALL BE NECESSARY, EXCEPT THAT PLAINTIFF

MUST SUBMIT FOR THE APPROVAL AND FILING BY THIS COURT OF A

LIST OF THE PAPERS SUBMITTED BY BOTH PARTIES ON THIS

MOTION.

Dated: November , 1995

Mayville, New York

____________________________

JOSEPH GERACE

Supreme Court Justice

To all Counsel:

Please take notice that a DECISION and ORDER of

which the within is a copy, is duly granted in the above

entitled action on the day of , 1995, and

duly entered in the office of the Clerk of the County of

Chautauqua on .